Court File and Parties

COURT FILE NO.: CV-19-00618043-00CP DATE: 20200625 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KABIR SINGH, Plaintiff AND: RBC INSURANCE AGENCY LTD., and AVIVA GENERAL INSURANCE COMPANY, Defendants

BEFORE: Justice Glustein

COUNSEL: Andrew Monkhouse and Alexandra Monkhouse, for the plaintiff Jeremy Devereux and Ted Brook, for the defendant RBC Insurance Agency Ltd. Paul J. Martin, for the defendant Aviva General Insurance Company

Reasons for Decision

Nature of issue and overview

[1] At a telephone case conference on June 4, 2020, the defendant RBC Insurance Agency Ltd. (“RBC IA”) sought to schedule a motion (the “Motion”) to:

(i) stay the individual action brought by the plaintiff, Kabir Singh (“Singh”) against RBC IA and the defendant Aviva General Insurance Company (“Aviva General”) in the Superior Court at Toronto, Court File No. CV-19-00619149-0000 (the “Individual Action”), until the certification of this proposed class action in Court File No. CV-19-00618043-00CP (the “Class Action”), and

(ii) remove Monkhouse Law as lawyers of record for Singh (or any proposed representative plaintiff) in the Class Action or for Singh in the Individual Action, or both, on the basis of conflict of interest.

[2] RBC IA advised the court at the case conference that it proposed that the Motion be heard prior to the upcoming certification motion scheduled for September 30 and October 1, 2020. RBC IA did not seek to delay the certification hearing, and advised that upcoming cross-examinations for the certification hearing could proceed as scheduled.

[3] RBC IA further advised that it did not intend to file any evidence for the Motion, and would rely only on the pleadings and applicable law.

[4] Aviva General supported the scheduling position taken by RBC IA, as well as the merits of the Motion.

[5] At the case conference, Singh opposed scheduling the Motion prior to the certification motion. Singh submitted that the stay and conflict issues raised in the Motion should be determined on the certification motion. Singh asked to make brief written submissions on the scheduling issue.

[6] Singh delivered written submissions on June 12, 2020. RBC IA delivered responding written submissions on June 17, 2020. Aviva General supported the RBC IA submissions but filed no submissions of their own. Singh delivered reply written submissions on June 24, 2020.

[7] I reviewed the written submissions. For the reasons set out below, I order that the Motion be heard before the certification motion.

Background

[8] In my earlier decision of Singh v. RBC Insurance Agency Ltd., 2020 ONSC 182 (“Singh”), I ordered that the proposed summary judgment motion to be brought by Aviva General not be scheduled before the certification motion. In that decision, I set out the nature of the action and the procedural steps to date (Singh, at paras. 5-20). I rely on that analysis in these Reasons.

[9] RBC IA will file no evidence before the court in support of the Motion. RBC IA will rely only on the pleadings and the uncontested fact that Monkhouse Law acts for Singh in both the Individual Action and the Class Action.

[10] Singh seeks to rely on a letter dated October 21, 2019 in which counsel for RBC IA advised Singh’s counsel:

[W]ith respect to s. 5(1)(a) of the CPA, RBC IA does not intend at this time to take the position that Mr. Singh is not a suitable representative plaintiff, but reserves the right to take that position, particularly in light of the evidence filed and any cross-examinations.

[11] In a recent letter dated April 13, 2020, counsel for RBC IA advised counsel for the plaintiff that “it will be [RBC IA’s] position at certification that Mr. Singh is not a suitable representative plaintiff because of his individual action, even if the individual action is stayed”.

Analysis

[12] As noted above, at the June 4, 2020 case conference, Singh sought permission to deliver submissions on the scheduling issue, i.e. whether the Motion should be heard before, or together with, the certification motion.

[13] However, in his submissions delivered to the court, Singh also took the substantive positions that (i) RBC IA has no standing to raise the conflict issue; (ii) RBC IA is estopped from raising the conflict issue because of the October 21, 2019 letter; (iii) in any event, RBC IA cannot bring the Motion since it has purportedly “waited over a year” to do so; and (iv) the stay sought is not appropriate since “the causes of action [raised in the Individual and Class Actions] are entirely different with the only overlap being in the pleading for common employer”.

[14] I do not address these additional issues raised in Singh’s submissions. They are properly to be considered when the Motion is heard, regardless of the scheduling. While RBC IA responded to some of those submissions, it would not be appropriate for the court to address them in these Reasons which consider only the scheduling issue.

[15] With respect to the scheduling issue, I first review the applicable case law and legislation. I then apply the relevant principles to the issue before the court.

A. The applicable case law

[16] Neither party provided authority directly addressing the issue of whether stay or conflict motions should be determined before certification motions. Instead, each party relied on cases in which the issues raised by these types of motions were either addressed before or at the certification hearing. I review these cases below.

[17] RBC IA relied on the decisions in Vaeth v. North American Palladium Ltd., 2016 ONSC 5015 (“Vaeth”), Rooney v. Arcelormittal S.A., 2013 ONSC 6062 (“Rooney”), and Logan v. Canada (Minister of Health), [2002] O.J. No. 522 (SCJ) (“Logan”).

[18] In Vaeth, Perell J. granted the motion by the defendants to temporarily stay both the individual and class actions based on his finding that the plaintiff law firm (the same for both the individual and class actions) was in a conflict of interest. That motion was brought before the certification hearing, but the issue of scheduling was not raised in the decision.

[19] In his reply submissions, Singh attempts to distinguish Vaeth on the basis that:

In Vaeth the facts and cause of action between the actions were ‘virtually identical’ and the law firm represented two different people. There is no material similarity between the individual claim and the proposed class proceeding in this case. The stay [proposed by Singh] ought to be sufficient.

[20] However, Singh’s position is again based on a substantive argument as to whether there is a conflict of interest arising from Monkhouse Law’s proposed representation of Singh in both the Individual and Class Actions. The submission does not raise the scheduling issue, which, in Vaeth, resulted in the conflict and stay issues being addressed in a motion before the certification hearing.

[21] In Rooney, Leitch J. granted the plaintiffs’ motion for a stay of the individual action prior to hearing the certification motion in the class action. Leitch J. relied upon the “substantial overlap” between the two actions (at paras. 77 and 81). The issue of scheduling was not raised in the decision.

[22] In Logan, the plaintiff sought to add a representative plaintiff (Ms. Bulloch-MacIntosh) in a proposed class action in which the Crown was a defendant. Ms. Bulloch-MacIntosh was also a plaintiff in an individual action against the Crown and other defendants. The plaintiff sought a stay of the individual action as against the Crown only, pending a disposition of the class proceeding (at para. 1).

[23] Winkler J. (as he then was), raised the following concerns relevant to both the stay and conflict issues (Logan, at para. 6):

To permit a litigant to maintain their individual action, albeit subject to a stay, while at the same time acting as a representative plaintiff in a class proceeding in respect of the same issues appears, prima facie, to be inimical to the objects of the CPA, and in particular to the stated goal of judicial economy or litigation efficiency. The conduct of proceedings in this way creates duplicative litigation in respect of those issues which remain alive if the individual action is merely stayed while the plaintiff in that action participates in the class proceeding. Additionally, the stay against one defendant in the individual action creates the risk of an inherent prejudice through delay to the other defendants, who are not parties to the class proceeding and who have cross-claims to assert against the defendant subject to a stay. The class proceeding has the potential to continue for a significant time, especially if appeals are pursued. As well, there is the potential for a conflict of interest for Bulloch-MacIntosh and her counsel, who are also class counsel, if both actions are permitted to continue. Each will have obligations in the context of their respective roles as representative plaintiff and class counsel in the class proceeding. Those obligations cannot be performed where an individual action is being maintained by the representative plaintiff at the same time as the class proceeding is being prosecuted.

[24] Winkler J. was prepared to hear the motion before the certification hearing, but the scheduling issue was not raised. Winkler J. advised counsel that he required oral submissions to address the concerns he had raised (Logan, at para. 9).

[25] Singh relies on the decisions in Persaud v. Talon International Inc., 2018 ONSC 5377 (“Persaud”) and in Sondhi v. Deloitte Management Services LP, 2017 ONSC 2122 and 2018 ONSC 271 (“Sondhi”).

[26] In Persaud, Perell J. addressed the conflict issue at the certification motion, finding that the law firm acting in both the proposed class action and 16 individual actions was in a conflict of interest and had to be removed as lawyers in the class action (at paras. 182-84). As with the above cases, the scheduling issue was not addressed.

[27] In Sondhi, the court reviewed the issue of a potential conflict of interest of a representative plaintiff as a factor against certification under s. 5(1)(e) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”). No issue arose as to a stay or a conflict of interest due to counsel acting for both the same representative and individual plaintiff. Further, no scheduling issue was raised.

[28] With respect to the general principles concerning scheduling of pre-certification motions, I rely on my analysis in Singh. While the general principle is that “the certification motion ought to be the first procedural matter to be heard and determined”, the principles set out by Strathy J. (as he then was) in Cannon v. Funds for Canada Foundation, 2010 ONSC 146 (“Cannon”) still apply to the issue of scheduling pre-certification motions (see para. 28 of Singh).

B. Section 12 of the CPA

[29] As Strathy J. noted in Cannon (at para. 14), the scheduling of motions is governed by section 12 of the CPA, which provides:

The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.

[30] Consequently, the court must consider which approach to scheduling results in the most “fair and expeditious determination” of the matters before the court in the proposed (or certified) class proceeding.

C. Application of the case law and section 12 to the facts of the present case

[31] Singh submits that the conflict of interest issue is a “partial certification motion” that should be addressed at the certification hearing. I do not agree.

[32] In both his initial and reply submissions, Singh relies on the decision in Western Canadian Shopping Centres Ltd. v. Dutton, 2001 SCC 46 (“Dutton”) (at para. 41), to submit that “[c]lass counsel being appropriate is part of s. 5(1)(e) of the CPA”. However, the court in Dutton only considered the “competence of the representative’s counsel” as a factor under s. 5(1)(e). The court did not purport to address a conflict issue as part of the certification test.

[33] There is no suggestion from the Defendants that Monkhouse Law is not competent to pursue the Class Action. Instead, the conflict issue is raised, and it is the scheduling issue which must be determined by the court.

[34] Leaving the resolution of the conflict and stay issues until the certification hearing would not result in an expeditious determination of the issues. If the court were to find a conflict of interest of plaintiff’s counsel, then that issue ought to be determined before the certification hearing. Otherwise, counsel would be at risk of obtaining instructions from Singh in both his individual and representative capacities, which could lead to a conflict in the representation of the proposed class.

[35] Singh’s submits that he would “consent to stay his individual action until after the hearing of the certification motion on Sept 30/Oct 1st 2020 if the Defendant agrees not to bring the pre-Certification Motion”. However, that position does not address the conflict issue. If there is a conflict in Singh’s counsel acting as lawyer in both actions, it should be addressed before critical decisions as to class definition, class size, and common issues are addressed at the certification hearing.

[36] The issue of whether Singh can act as a representative plaintiff when he has an individual action requires a determination of the conflict issue before certification. I agree with the submission of RBC IA that “[i]f Monkhouse Law is in a conflict of interest, it cannot properly provide legal advice to Singh both in respect of his obligations as proposed representative plaintiff and in respect of his personal interests in his individual action”. A finding of conflict at the certification motion would raise issues of adequacy of representation for the class which would not arise if the conflict issue were determined at the outset.

[37] On the facts of the present case, there is no concern over delay to address the conflict or stay issues raised in the Motion. RBC IA advises that it will not file evidence on the Motion, relying only on the pleadings in both actions and the uncontested evidence that Monkhouse Law represents Singh in both actions. To the extent that Singh seeks to rely on the October 21, 2019 letter, it can easily do so by a very brief affidavit or filing it on consent of the parties.

[38] For similar reasons, costs of the Motion would not be significant.

[39] Consequently, the interests of economy and judicial efficiency support hearing the Motion before certification.

[40] Further, I agree with the submission of RBC IA that if the court waited until the conflict motion and then held that there was a conflict of interest, it could make a removal order as a preliminary matter and then require that the certification motion be adjourned to be reargued by new counsel, possibly with new materials, causing an even greater loss of economy and judicial efficiency.

[41] I do not set out a principle that every conflict or stay motion must be scheduled before certification. The governing principle in s. 12 of the CPA and the factors in Cannon will still need to be taken into account. However, on the facts of the preset case, I order that the Motion be heard before the certification motion.

[42] Given that the certification motion is scheduled for September 30 and October 1, 2020, I will hear the Motion during the week of August 10, 2020, when I am sitting in court. Counsel can set a date convenient to them with my assistant, Roxanne Johnson, at roxanne.johnson@ontario.ca.

[43] Counsel can forward me a consent timetable or I will set one if necessary at a telephone case conference. I ask counsel to provide me with electronic copies of any motion records, factums and briefs of authorities (or hyperlink the authorities in their submissions) as they are exchanged between the parties, and to ensure that the deadline for the exchange of all factums and briefs of authorities is no later than August 4, 2020. A hard copy of the materials for the motion should be delivered to Roxanne Johnson at a date and time coordinated with her, with a similar hard copy set of the materials filed with the court motion office when such filing can take place (and appropriate fees paid).

[44] As for costs of these submissions, I take the same approach as in Singh, and order costs payable to the defendants in any event of the cause. Given the very brief submissions of all parties, I would expect those costs to be considerably lower than those fixed in Singh at $18,903.19. If the parties cannot agree on costs, I will fix an amount either at a telephone case conference to be scheduled before the hearing of the Motion, or at the hearing of the Motion.

GLUSTEIN J. Date: 20200625

COURT FILE NO.: CV-19-00681043-00CP DATE: 20200625 ONTARIO SUPERIOR COURT OF JUSTICE KABIR SINGH Plaintiff AND: RBC INSURANCE AGENCY LTD. and AVIVA GENERAL INSURANCE COMPANY Defendants

REASONS FOR DECISION Glustein J. Released: June 25, 2020